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Stratagene Allowed to Sell Competent-Cell Products Until District Court Resolves Remaining Issues

Stratagene is free to continue selling its competent-cell products until a district court addresses a patent suit between the firm and Invitrogen again, according to an Invitrogen official.

Invitrogen said that a US appeals court ruled in its favor in a four-year-old patent-infringement suit against Stratagene. The appeal overturned a 2002 decision by a federal district court in Texas and ruled that Stratagene infringes a patent involving a process for developing competent cell products.

The ruling that "substantially all" of the chemically competent cell products sold by Stratagene infringe Invitrogen's patent means that the suit will be remanded to the US District Court for the Western District of Texas, which will resolve remaining issues, such as possible damages, injunctions, and any of Stratagene's remaining defenses.

The potential financial impact to Stratagene is unknown at this time, as is the current revenue generated by these products. Stratagene officials were unable to respond to BioCommerce Week's request for an interview by press time.

The appeals court "found that, based on the defenses, that our patent was valid," Alan Hammond, chief intellectual-property counsel of Invitrogen, told BioCommerce Week sister publication GenomeWeb News. The district court "also will address some of the invalidity defenses Stratagene had raised," he said. "We've asked for damages and injunctions in the district court," said Hammond. He estimated that the district court would be likely to address the suit within three to six months. When the court would resolve the matter is less clear, he said.

According to Hammond — along with documents Stratagene filed with the US Securities and Exchange Commission — Invitrogen originally sued Stratagene over the competent-cell patent in March 2001. A November 2001 summary judgment by the US District Court for the Western District of Texas initially found no infringement of Invitrogen's competent-cell patent No. 4,981,797, a decision that was reversed by the Federal Circuit Court of Appeals in May 2003.

After that point, the case was sent back to the District Court, which found Invitrogen's '797 patent invalid in January 2004. The current finding by the Federal Circuit Court of Appeals, triggered by an Invitrogen appeal, holds that Stratagene indeed infringed Invitrogen's '797 patent.

"The appeals court has made a final hearing on [the lawsuit], and unless they try to have some sort of re-hearing, it will go back to the district court," said Hammond. Otherwise, the issue of whether infringement took place has been resolved, he said.

The judgment against Stratagene is the second in the last two months. In early September, Stratagene was ordered by a US District Court jury in Wisconsin to pay Third Wave Technologies $5.29 million in damages for patent infringement (see BioCommerce Week 9/8/2005). Though Stratagene is appealing the verdict and the damage award, if the jury's decision stands it would wipe out virtually all of Stratagene's cash holdings, which stood at $5.7 million as of the end of its second quarter on June 30.

The jury's verdict and damages award was followed less than a month later by an injunction that prevents Stratagene from selling its FullVelocity QPCR and QRT-PCR products.

— Edward Winnick ([email protected])

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